Jane Doe v. Manchester School District et al.

NOTICE: This speech-to-text record was generated from automated speech recognition, is likely to contain errors or inaccuracies, and should be verified against the recording provided by the Supreme Court at https://www.courts.nh.gov/our-courts/supreme-court/oral-argument/live-stream/2023.

Good morning, attorney Layman, I under you reserve two minutes for rebuttal. That's Correct, your Honor. Please proceed. Thank you. Uh, may I please the court? I'm Richard Lehman of Layman Nature List here in Concord, uh, representing this morning, uh, Jane Doe of Manchester with leave of the court. I'd like to address, uh, one brief issue before taking questions. Um, and that has to do with the question that the respondents have put at the center of the brief of, of the, their brief and their argument, which is this question, um, whether the constitution places an affirmative obligation on a school district notify a parent of a child's in-school behavior. Um, I submit that that is not a correct recitation of the question. The real issue is not a school reporting on what a student is doing in school. It's the duty of the school to report what the school itself is doing in school. The policy at issue here recognizes specifically that a school is going to take action. This were in 1983 context. This would be state action. Now we're not in 1983, um, case, but what we're talking about is the parents' relationship to the school in terms of what the school is doing, how the school is treating a child. This is not a case about outing a student because of the way the student acts in school. It's not a case of outing a student who has a private conversation with an individual faculty Member. How, how can you avoid those pitfalls? Excuse? How can you avoid those pitfalls as you described them? You say they're not an issue in the case. I Don't, I this the case. Well, so we're here this morning asking you to make a narrow ruling. You're not gonna answer all the questions that are gonna come up down the road, just like in, you know, any constitutional case. And he didn't v Wayne Ray, we didn't answer all the subsidiary questions that arise, but the only relief. So help me out where, what is the precise infringement on parental rights that you allege in this case? Um, the, there are a couple. The first is usurping the parental role of determining the very identity of her child. Um, a parent sent her child to school understanding that child to be, But, but that didn't happen here, did it? Yes, it did. The school is not deciding what gender the child should be referred to. The school just has a policy about how they're gonna communicate that information. No. Well, the school's deferring to the wishes of a child and it's doing so as a matter of reference, um, without regard to the age and the parent maturity of the child without regard to the reasons the child may be making such a request and without regard to the interest in the parents of having a say in the rearing of their child and how the government reacts to that child. Um, I don't See, I don't see how this policy is prohibiting a parent from parenting their child. It it interferes with the ability of the parent to parent your child. If the, the respondents say in their pleadings, there's still plenty of alternative ways to parent. Alternative ways to parent is not standard for interference with constitutional right voting. I still, I still don't see the interference with a constitutional right as established. Let's, same troxel. It's not the same thing, is it? Uh, I believe it is. It's, it, it is an inter Then where would we draw the line? What types of behavior need to be disclosed or can't be suppressed Here? We know exactly what the behavior is, the behavior of the school, that the school is treating the student as being of a gender other than that of the parent's understanding and having a gender expression. Other than that parents Understanding and does that, how does that infringing upon a parent's constitutionally protected Right. Parents have the right and duty to raise their children in using their best judgment, and the government is substituting its judgment for what it thinks is best for the child. And I see not just substituting its judgment, but deferring to the child and not even asking the question in the policy if it can, uh, has facts to make it believe that it's in the child's best interest to do so. Well, as I read the policy, I think it says should, doesn't it? It does. How's that infringement? Uh, well, the, the policy says should in four different places, right? It says should and I, the, the reply brief goes into this, it says, should in, in three places, and it says, should not in the place that we're talking about, it says, should not, um, reveal to the parents unless it still the Word should. Well, it should and it creates a presumption. Now, if what you are saying is that if, and if what the question implies is that there is a set of circumstances under which that presumption created by the word should does not apply, that's fine. But the policy provides no guidance whatsoever on what those circumstances are. So It's the failure to provide guidance. That's the infringement, that's not, not the policy itself. The failure to provide guidance creates the circumstances that lead to the infringement. If a school look, it school would be perfectly justified if it had some reason to believe that contrary to the constitutional presumption that all parents are fit, that revealing a child's, uh, transgender status in the school's relation to that child was going to put a child in physical danger, a school would be justified in taking steps to minimize that danger. Absolutely. But what is the policy doesn't do any of that, and it doesn't create a process for that. It just says Can I, can I, Can I, can I skip and then I'm gonna leave you alone. Uh, do you take the position that the child student has no privacy rights in this matter? In this case? It hasn't. It is not an issue that's been raised in this case in particular. There pro there a student might have privacy interest, but a privacy interest is part of, uh, gets weighed in a balancing test. What a student doesn't have a privacy interest that trump's a parent's interest by definition necessarily presumptively and without standards in which to determine whether that presumption should or should not apply. I know I'd said I'd be quiet, but how would you make those standards up? Uh, We're, it's hard to make up standards stand here. Well, but it's not the judicial responsibility. I think the, the correct outcome of this case would be to say these standard list determination, allowing a school to usurp the authority of a parent to direct the upbringing of their child or unconstitutional, go back and try again. You do that all the time. Um, and indeed, in terms of recognizing how those things get balanced out the, this court has said in the, in the RA case that in the context of parental rights, sometimes there are going to be compelling governmental interests that satisfy, um, strict scrutiny that goes with the fundamental interest of child rearing. Um, so it's, you know, they, they talk about rational basis with teeth. Um, what, uh, justice Broup wrote about in the, in RA case, is strict scrutiny with room for there to be a compelling government interest, not fatal and fact strict scrutiny, Even though Justice Hicks said he was done. I promise. Um, I'm gonna go back to a question he asked, which is just what are the, the, the parent's rights at issue here? We heard you say usurping the parent's, right? For identity. Could you just get out what you think the parent's rights are? I I can the, to the, the right to determine whether socially transitioning is in the child's best interest. Uh, social transitioning is not simply trying on a new set of clothes. It's more than that. There's some research that I said in the reply brief. Uh, once a child goes down the path of establishing an identity who may or may not change their mind, it becomes much more difficult to back out of that parental input into that kind of decision matters. Concealing. Well, I just don't see how the policy prohibits or prevents a parent from being engaged in that, in that process. If A school does, the school policy encourages the school itself to interfere with the parent's discovery of the existence of this kind of situation. If the school is, has a policy that encourages, requires school personnel to say, uh, to behave in a way that disguises how the school is otherwise treating the child, it interferes with, with the ability of the parent to discover the existence of issues to be looking out for. I don't read the policy as imposing a gag order on staff. Well, the facts in this case, the allegation in this case was effectively a, um, uh, not, not so much a gag order, but the email that my client received said, we have to do it this way. It didn't say, well, we can talk about it. It didn't say we can be flexible. Wasn't the policy revised? Wasn't the policy revised after that? The policy was revised in a way that doesn't, didn't effectively change the way the policy revision worked was that they struck out the, um, uh, the policy said, uh, school personnel should not disclose information that may reveal its students' transgender status or gender non-conforming presentation to others, including parents and other school personnel. But since including parents and other school personnel are defined within others, it doesn't change anything. So they changed it, I would submit for political reasons, because, um, it looks pretty ugly to expressly say, including parents, but at the end of the day, they're presumed to not be disclosing the truth to parents and not provided with any basis on which to consider override. Just want to get back to the list, and maybe I just ask you this question. Is one of the rights implicated the parent's right to attend to a child's physical and emotional needs? Yes, precisely that. And if the school is interfering with the ability to obtain information about what those needs might be, then that's interference. And I, uh, it, there's also the question of, in the respondent's agree whether to send a child to this school, if a parent is being misled or a school is disguising how a child is behaving while in that school, it's interfering with that ability to make an informed information to make an informed decision. That's exactly right. Um, they're asking you to make a very radical decision that will for closed for all time and essentially adopt the, uh, fields decision from the ninth Circuit, which even the Fields court eventually abandoned that parental rights stop at the schoolhouse door. Um, like the wizard at the end of the, I don't, I don't movie. I don't see how any court could say that with a straight face. I mean, that's crazy that That's what the field court said. And then on back, they, they pulled back from it. But effectively that's what they're saying. What are the parent parental rights to raise their children that go through the schoolhouse store? I suspect they disagree with your characterization. I'm sure they disagree with the characterization, but I suspect that they're going to tell you, uh, effectively that the rights belong to the students, not to the parents. They said something effectively like that in their brief, that the parents' rights are derivative of student interests. And I would submit that I haven't seen anything that says it that way. This is government action that interferes with the ability of a parent to obtain information of what's going on with their kid at school, what medical needs they, they might need. And I would submit it's, um, in fairly incredible to be presented with evidence that students experiencing gender dysphoria are at heightened risk for suicide, self-harm, other kinds of harm, and then to make it so that the person responsible for providing that, uh, child with medical care, counseling, all the things that everybody would want any student to, uh, have access to who is in a distressed state or who needed help in some way that comes through parents doesn't come through the school. So now it sounds like you are asking for an affirmative obligation to announce it child's decision to a parent. Isn't that what you're hearing? I I'm asking to announce the school's decision. I don't, there's no obligation for a school to disclose to a parent how kids are relating to each other on the playground. It's just like in, there's no duty to disclose bullying between students. There's no duty to disclose if, if students treat each other, they're gonna treat each other how they're gonna treat each other. The obligation arises when it's the government that adopts the student's, uh, wishes. And in this, under this policy, it adopts the student wishes without any guidance whatsoever. And the policy is presumptive deferral. Um, in their briefs, it suggested that there's this flexibility, but there's no, that flexibility isn't really written into the policy. And just using the word should, uh, doesn't define or, or provide guidance or scope to any school about whether or not they should simply divert to child regardless of age, but could be talking about eight year olds, um, and still having government actors, uh, defer to whatever a child wants in defiance of parental wishes. And under circumstance, which parents are not advised. What, what should we do with the argument made by the district that this is a political issue? It's been argued at the legislature, there was proposed legislation that would've in effect do what you're asking and that that's where the process should take place rather than a court ordering It. Constitutional rights are outside the democratic process, and our position is this burdens the ability of parent to raise their child. I reemphasize that burden doesn't have to be complete. The existence of alternative means to exercise a right is an incomplete statement that Well, you're not taking the position that any impediment would interfere, would, would be unconstitutional, right? Well, there's been, there's the whole list of cases. It's briefed about the broad, you know, curriculum, locker rooms, bathrooms. And would you agree that courts should not act unless constitutional violations are clear? I there's constitutional violations or not. First, in the First Amendment context, we talk about burdens on free speech all the time. In the Qura case, uh, you talked about the burdens on voting, nobody has denied the right to vote. It was just made more difficult. This is similar to that.

Thank you attorney Leman Glenn. Thank you, Mr. Chief Justice. May I please the court? Megan Glynn, on behalf of the Manchester School District behind me, I'd like to introduce superintendent of schools, Dr. Jennifer Gillis. If the issue in this case is truly whether the district has a constitutional duty to report what the school itself is doing and how the school is treating a child, it is undisputed that the district has met that burden. There has been no allegation in this case that the parent did not have access to the policy. The policy told the parent exactly how the school district would react if this situation were presented to it. And so to that end, if the issue is I didn't know how the school was going to treat the issue, the school district has undisputedly met that burden. The Manchester School district serves over 11,000 students across 21 schools. Its primary responsibility is to those students, some of whom are transgender or gender nonconforming here in response to a legislative to ensure that transgender students not discriminated against in school. The board acted policy 100.1 with the stated goal of providing a safe learning environment for those students and ensuring that all students have full access to educational programs. So under this policy, how is a staff member supposed to react when a parent calls and asks, what gender is my child representing the school? The staff member can be truthful, but the staff members should consider the individual circumstances of the student, which is exactly what the policy says, that the policy should respect students' privacy interests. However, there are circumstances would merit disclosure such as if there was a, a safety interest in disclosing immediately to the parent. So the student's privacy interest is not absolute. In those cases, the staff member can answer truthfully further, the staff member can respond, you should talk to your child about that. And when you have had that conversation with your child, then please come into the school and we can have a conversation about it together. But in that way, the school stays out of the individual family realm and allows the parent and the child to have that conversation uninterrupted. Do, do you agree that, uh, parents' rights Southern New Hampshire constitution are natural and essential and inherent? Yes, Your Honor. And do you agree with the plaintiff that, um, the standard, our protection under New Hampshire, the New Hampshire Constitution, is greater than that under the federal Constitution? Yes. I think you have the right to extend that. Yes. And, um, do you agree that a parental parent's rights extends to, uh, ensuring the safety and emotional physical safety and emotional wellbeing of a child? Yes, but we don't believe that this policy infringes those parental rights. We believe that this policy allows parents for 80% of the week, 80% kids are in school for 20% of the week to have complete opportunities uninterrupted by the school district to have these conversations with their child, to care for their emotional and physical wellbeing. And when they make that choice to send them to the Manchester Public Schools, they are allowing the Manchester Public Schools to operate in a, an educationally reasonable way for those seven hours per day, five days per week. Do, do you dispute the allegation in paragraph 22 of the complaint that that trans youth are under a heightened risk for, um, suicide and mental health issues? No, we certainly do not. Which is why it is all more imperative that students who are not comfortable immediately having these conversations with their families have a safe place to go at school and can have these conversations with guidance counselors, teachers and Administrators. So in light of the parents' right to, um, attend to a child's physical and emotional wellbeing, should they have access to this information, particularly given the heightened risk that that trans youth face? I, I think that parents do have access to this information. They are just not getting that direct convers confirmation from school if the student has identified, only if the student has identified that they are not ready for their parents yet to know. And so parents certainly have an interest in this information. There's no question about that. But the question for the court is whether that interest rises to the level of a constitutional right And trans youth we see from the CDC and its re recent survey are at a much higher risk of being bullied and subject to sexual violence. Yes. Do we agree with that? Yes, Absolutely. And, um, under our statute, there is an affirmative duty to report to parents bullying. Is that correct? Certainly. And this policy allows the school district to report a student's gender identity if there is an ongoing safety risk, such as bullying. So if a child is being bullied because they are transgender, you are absolutely right within an RA 1 93 F that merit requires, excuse me, But it is conceivable that a parent would first find out about the a child's gender choice after having been bullied under this sta under this policy, isn't it? Well, it is conceivable that they would find out in the process of notification of a bullying investigation. That is correct. Yes. Significantly, the policy does not protect, prevent a parent as Justice Donovan has already alluded to, from making decisions that affect the care, custody and control of that child. As the child court clearly stated, parents can have conversations with their child, they can monitor their social media, they can monitor their friend group. And again, they are doing that exclusively for 80% of the week. If the parent wants to take a different educational choice for their child, we have already told them how the school district is going to respond in these circumstances. They are well within their rights. Nobody is disputing that they can pull the child from the Manchester School District and homeschool that child, send the child to private school. Those are options available to them. But even if this court follows a third circuit reasoning, um, that parental rights do go beyond the schoolhouse gates, then I think there is still no argument that a parental right has been infringed here. Right. 'cause those cases that suggest parental rights go beyond the schoolhouse gates all have an element of coercion that is simply not present here. As Justice Donovan already stated, there is no allegation that the school district told the child what gender they had to be and then offered them an opportunity to pay names and pronouns and then withheld that information from the parent. So here there is no coercion, there is no then withholding information about the coercion itself. The appellant is asking the court to extend a fundamental right beyond that, which any court has done in the United States thus far. Um, and so we are looking to narrowly reflect parental rights within the legislative process. The legislative process allows for a parent to come to a school board meeting to voice their opinion about a proposed policy. This policy was not enacted in secret. It was published. Parents had the opportunity to come to the policy committee meetings and speak, um, and then the parent has the opportunity to vote for school board members. How do you respond to attorney Lee's, uh, suggestion that the amendment to the policy really made no difference at all? The amendment to the policy was created and enacted prior to the litigations. So yes, it was enacted. It, it was, it took effect immediately after the litigation, um, was filed. However, it was already in the policy committee process and being considered before the litigation. Um, and that was to reflect the change in needs of the Manchester School District, which is appropriate for the policy committee to consider. So I don't think that the, the amended policy really does change the game in this case. But I do think that the change to the policy shows that the policy committee and the school board is paying attention to how the community responds to this issue and they can and will and are in the best position to make changes to that policy reflecting the needs of the Manchester School community. In the absence of that, or possibly in addition to the legislature, as you are all probably very well aware, is currently considering this exact issue in the parental Bill of rights that was rejected by the house last year, it was projected this year. It's now being considered before the full house again. Well, but whatever's happening in Manchester or whatever is happening before the legislature, Mr. Lehman makes the point that constitutional rates aren't up for a vote, um, either in Manchester or at the legislature. So it's either unconstitutional or it's not. Yes, your Honor. But I would submit that this does not impinge upon a parent's fundamental right, absent a finding from this court that it doesn't hinge upon a fundamental right. The appropriate place to change the policy if the policy needs to be changed is not this court, it's the Manchester School Board, or perhaps the legislature if they wish to issue a new law. Is, is the safety valve if, if it doesn't impinge or it doesn't impinge on a constitutional right, even though it affects parental rights because the parent can engage in homeschooling or can put their child in a private school. Is that the sort of safety valve here? I do think that safety valve, I certainly there is, there's no allegation that this parent is prevented from making those choices, which is a significant part of the fundamental right. Um, but I think there are other safety valves in this policy which allow school districts to overrule the, the determination of the student, um, and inform the parents. The policy itself is the safety valve because the policy provides an opportunity to notify parents if district officials believe that a parent needs to be brought in the loop on this because there is a particular safety issue or perhaps there's a violation of a school rule, right? If a child violates a dress code, for example, a student comes to school and is wearing, you have a male student transitioning to female and is wearing an outfit that violates the dress code, that is going to result in a phone call to parents saying, Hey, your child was violating the dress code today. This is what happened. So there are lots of circumstances in which parents would find about this information from the school district. We're not affirmatively trying to hide the information from them, but we are trying to create safe space for students and we are trying to create, protect student privacy. Um, and so the district firmly believes that this policy addresses the needs of parents. I think it is significant to note that the district, as noted by the court in Parker, is constantly walking a constitutional type of, we are balancing the needs of parents. We are balancing the, the constitutional rights of students, the interests of the community, and the next case down the line for the court, if the court extends, the fundamental right beyond that of any court in the United States is the case of the student who is coming to this court and saying, wait a minute, I have a fundamental right to an education here and my fundamental rights are now being violated because they're discriminating against me in violation of the statute and in violation of Title ix. So I think it is important for the court to be aware that these cases are likely to come if the conflict of parental rights and student rights is made explicit by this court. At this point, the parental rights are being reflected. They are being reflected in the policy. There is no constitutional right for a parent to get affirmative notice from the school district, even if the district was outwardly lying to parents, which it is not. And by the way, it has not been alleged in this case that the district lied to the parent. The district told the parent, per the policy, we are required to refer to your child this way. That was not a lie. That was completely accurate information. So based on the fact that there is no constitutional right at stake here, and there is a significant interest on behalf of the Manchester School Board to make decisions that are appropriate for the city and the school children of Manchester, we would ask the district court, we would ask this court, excuse me, to affirm the trial board. Thank you very much. Attorney Laman. Attorney layman of rebuttal. Couple things. Um, first of all, parents cannot have a conversation with their child if they don't know what the conversation is about. They cannot have a, uh, conversation with their child about gender identity when the school has taken steps to prevent them from discovering the child's in-school behavior. Which, uh, and the school's treatment of that child at school. Uh, the idea that the policy, um, does not try to, uh, affirmatively hide that fact from the parents I submit is preposterous. It specifically says we're going to use one set of pronouns in school. And it's different set of pronouns when discussing things with parents and others, um, outside the school, um, in terms of what the next case down the road having to do with a student privacy will, uh, all cross that bridge. You will, when, when you get to it. You can't determine do constitutional adjudication because the next case is going to be hard. This case is hard. All the cases are hard. We're all walking the razor schedule and constitutional things in various ways all the time. Um, there's nothing new about that. But if you rule that there is effectively what they said, nope, parental rights inside the, uh, schoolhouse gate, uh, that don't derive from student's privacy, rights or some other right belonging to the student and attached to the parent, secondarily, then you are foreclosing the question forever and not, uh, allowing constitutional development of doctrine that creates the kind of balancing test that we use in all the other constitutional areas in the policy is so vague that it provides no guidance. Just dropping the word should into the middle of a policy does not provide any kind of constitutional certainty or guidance whatsoever. Do you Agree there needs to be a policy or do you, would you prefer no policy? Um, the, I believe the statute requires there to be a policy of some kind or another. It does not have to be a policy that separates children from their parents and says, parents don't have a stake in this thing. We're going to defer to the children. And if there's going to be a recognition of parental rights, the policy should probably make it expressed. The policy should say, these are the things we're going to balance. And this is how the school's gonna make a determination of when a child is going to be allowed to continue to live a double life at school. And the school's going to expose their parents are learning about it on the one hand. And when this, when the school is going to determine that the child's interest require disclosure so that that child can be given the kind of assistance that they need in order to have a healthy, uh, thriving future. Thank you very much, attorney Lehman. Thank counsel. Case submitted. Court's in recent.